Filed 10/19/22 P. v. Rocha CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Calaveras)
----
THE PEOPLE, C094841
Plaintiff and Respondent, (Super. Ct. No. F3428A)
v.
DANIEL MAURICE LESSIUE ROCHA,
Defendant and Appellant.
In 2007, a jury found defendant Daniel Maurice Lessiue Rocha guilty of first
degree murder, unlawful possession of a firearm, and offering a bribe to a correctional
officer. The jury found true a street gang allegation, a firearm enhancement, and a prior
strike allegation. In 2019, after we affirmed his direct appeal, defendant petitioned under
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Penal Code1 section 1170.95 (now section 1172.6)2 for relief due to changes to the
felony-murder rule. The trial court denied the petition. Defendant appealed and we
remanded for further proceedings. (People v. Rocha (Nov. 30, 2020, C090198) [nonpub.
opn.].)
Defendant filed a second petition under section 1170.95, and the trial court
appointed counsel but found the petition failed to make a prima facie case. Defendant
again appealed.
On appeal, defendant contends, and the People agree, that in denying defendant’s
petition, the trial court engaged in improper factfinding at the prima facie stage. We
reverse and remand.
FACTUAL BACKGROUND3
One night, defendant and Donald Pinon, members of the Norteños street gang,
broke into James McLain’s room, and then shot and killed his housemate, David Jessop.
(People v. Rocha, supra, C057538, C057715.)
At trial, there was evidence defendant was present during the killing of Jessop, and
he may have been the shooter. There was also testimony that he was not the shooter.
Prior to deliberations, the jury received multiple instructions regarding murder and the
accompanying enhancements. (People v. Rocha, supra, C057538, C057715.) Pursuant
to CALCRIM No. 521, the jury was instructed that defendant was being prosecuted under
1 Undesignated statutory references are to the Penal Code.
2 Effective June 30, 2022, the Legislature renumbered section 1170.95 to section 1172.6
with no change in text. (Stats. 2022, ch. 58, § 10.) For purposes of clarity and
conformity with the petition, we will refer to the statute as section 1170.95 throughout the
opinion.
3 The facts are taken from our opinion in defendant’s direct appeal. (People v. Rocha
(Sept. 1, 2009, C057538, C057715) [nonpub. opn.].)
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a premeditated murder theory and a felony-murder theory. The jury was further
instructed that it did not need to agree on the same theory to find defendant guilty of first
degree murder. Under CALCRIM No. 1401, the jury was instructed that in order to find
defendant guilty of the criminal street gang enhancement, the People were required to
prove that: (1) defendant committed or attempted to commit the crime in association
with a criminal street gang; and (2) defendant intended to promote the gang’s criminal
conduct. Under CALCRIM No. 1402, and in order to find defendant guilty of the gang-
related firearm enhancement, the jury was instructed that the People were required to
prove: (1) a principal to the crime discharged a firearm during the commission of the
murder; (2) the person intended to discharge the firearm; and (3) their act caused Jessop’s
death.
The jury found defendant guilty of first degree murder (§ 187), unlawful
possession of a firearm (§ 12021, subd. (a)(1)), and offering a bribe to a correctional
officer (§ 67.5, subd. (b)). The jury also found true a street gang enhancement (§ 186.22,
subd. (b)(1)), a firearm enhancement (§ 12022.53, subds. (d) & (e)(1)), and a prior strike
allegation (§ 667, subd. (b)). The court sentenced defendant to 75 years to life plus three
years, including 25 years to life for murder (doubled for the prior strike), 25 years to life
for the street gang and firearm enhancements (the street gang enhancement was stayed),
three years concurrent for unlawfully possessing a firearm, and a consecutive three-year
term for bribery.
PROCEDURAL BACKGROUND
In 2019, defendant filed a petition for resentencing under section 1170.95. The
trial court denied defendant’s petition. Defendant appealed and our court reversed and
remanded for further proceedings. (People v. Rocha, supra, C090198.)
Upon remand, defendant filed a second petition under section 1170.95,
subdivision (a). The trial court appointed counsel and held multiple status hearings, and
during the course of the hearings, received argument from the parties. In relevant part,
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the People conceded during the trial the prosecutor argued two theories of guilt to support
defendant’s first degree murder conviction: (1) willful, deliberate, and premeditated; and
(2) felony murder (which included aiding and abetting). During argument at the final
status hearing, defense counsel conceded that due to the jury’s true finding for the
criminal street gang enhancement, he thought that the jury found defendant was the killer.
In 2021, the trial court, without providing a statement of reasons, concluded that
based on the arguments and information in “the file,” defendant failed to make a prima
facie showing he was entitled to relief and denied his petition. The trial court did not
receive briefing from the parties.
DISCUSSION
Defendant contends the trial court erred in denying his petition for resentencing at
the prima facie stage as it either erroneously concluded that the jury found him to be the
actual killer, or engaged in improper factfinding at the prima facie stage to conclude
defendant was the killer. The People agree defendant is not ineligible for resentencing as
a matter of law and the matter should be remanded.
Senate Bill No. 1437
Senate Bill No. 1437 (2017-2018 Reg. Sess.), effective January 1, 2019, was
enacted to amend the felony-murder rule and the natural and probable consequences
doctrine “to ensure that murder liability is not imposed on a person who [wa]s not the
actual killer, did not act with the intent to kill, or was not a major participant in the
underlying felony who acted with reckless indifference to human life.” (Stats. 2018, ch.
1015, § 1, subd. (f).) Senate Bill No. 1437 also established a procedure for qualified
persons to seek retroactive relief based on these changes in the law through a petition
with the trial court. (Stats. 2018, ch. 1015, § 4.) The procedure allowed those “convicted
of felony murder or murder under a natural and probable consequences theory [to] file a
petition with the court that sentenced the petitioner to have the petitioner’s murder
conviction vacated and to be resentenced on any remaining counts when all of the
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following conditions apply: [¶] (1) A complaint, information, or indictment was filed
against the petitioner that allowed the prosecution to proceed under a theory of felony
murder or murder under the natural and probable consequences doctrine. [¶] (2) The
petitioner was convicted of first degree or second degree murder following a trial or
accepted a plea offer in lieu of a trial at which the petitioner could be convicted for first
degree or second degree murder. [¶] (3) The petitioner could not be convicted of first or
second degree murder because of changes to [s]ection 188 or 189 made effective January
1, 2019.” (§ 1170.95, subd. (a); Stats. 2018, ch. 1015, § 4.)
Prima Facie Showing
Section 1170.95 requires a prima facie determination. (§ 1170.95, subd. (a).)
Under subdivision (c), the trial court must appoint defendant counsel if requested, receive
briefing from the parties, and determine whether “the petitioner makes a prima facie
showing that he or she is entitled to relief.” (§ 1170.95, subd. (c).) At the prima facie
stage, and in addition to the petition, courts may “rely on the record of conviction in
determining whether that single prima facie showing is made.” (People v. Lewis (2021)
11 Cal.5th 952, 970.) The prima facie showing is very low, so in reviewing the record of
conviction, which includes appellate opinions, the trial court should take the petition’s
allegations as true and refrain from engaging in factfinding, weighing evidence, or
exercising discretion. (Id. at pp. 971-972.) The “authority to make determinations
without conducting an evidentiary hearing pursuant to section 1170.95, subd[ivision] (d)
is limited to readily ascertainable facts from the record (such as the crime of conviction),
rather than factfinding involving the weighing of evidence or the exercise of discretion
(such as determining whether the petitioner showed reckless indifference to human life in
the commission of the crime).” (People v. Drayton (2020) 47 Cal.App.5th 965, 980,
disapproved on other grounds in Lewis, at p. 963.) But, if the record of conviction
contains facts refuting defendant’s prima facie allegations in the petition and shows
defendant was the actual killer, aided and abetted with intent to kill, or was a major
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participant who acted with reckless indifference to human life, the trial court may deny
the petition as a matter of law without further proceedings. (§ 189, subd. (e); Lewis, at
p. 971.)
If, after accepting the facts in the petition as true, defendant is entitled to relief
because he has met the requirements of section 1170.95, subdivision (a), the trial court
should issue an order to show cause. (§ 1170.95, subd. (c).)
Analysis
Here, the parties agree defendant filed a petition alleging facts sufficient for relief
under section 1170.95, subdivision (a).
At defendant’s trial, the jury was instructed to find defendant guilty of murder;
they did not need to agree on the theory of liability: premeditated murder or felony
murder. As a result, the murder conviction does not establish defendant was the actual
killer rendering him ineligible for relief. The murder conviction also does not
demonstrate defendant aided and abetted with the intent to kill; a finding that would
similarly make him ineligible for relief. Therefore, the first degree murder conviction did
not preclude defendant relief as a matter of law.
Although defense counsel conceded at the final status hearing that a true finding
under section 186.22, subdivision (b)(1) rendered defendant ineligible for relief under
section 1170.95, neither of the jury’s true findings on the related enhancements required
finding a specific intent to kill. (See §§ 186.22, subd. (b)(1), 12022.53, subds. (d) &
(e)(1).) The jury’s true findings for section 186.22, subdivision (b)(1) and section
12022.53, subdivisions (d) and (e)(1) similarly do not reveal defendant “played a direct
role in killing the victim.” (People v. Offley (2020) 48 Cal.App.5th 588, 600.)
Consequently, neither the jury’s verdict nor their true findings rendered defendant
ineligible for relief as a matter of law.
The jury’s findings do not establish as a matter of law whether defendant was the
actual killer, acted with intent to kill, or was a major participant acting with reckless
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indifference to human life. The jury’s findings are consistent with defendant being the
actual killer, which would refute the petition’s allegations and render him ineligible for
relief under section 1170.95. They are also consistent with defendant being merely an
accomplice to Pinon, who was the actual killer and under this determination, defendant
would be entitled to relief. To discern which conclusion is proper requires an evaluation
of the facts, which is improper at the prima facie stage. (People v. Drayton, supra,
47 Cal.App.5th at p. 980.)
Because defendant’s petition met the prima facie showing, and nothing in the
record of conviction refuted the allegations of the petition, the trial court was required to
issue an order to show cause.4
DISPOSITION
The trial court’s order denying defendant’s petition is reversed and the matter is
remanded for further proceedings consistent with the amended provisions of section
1170.95, as now stated in section 1172.6.
/s/
BOULWARE EURIE, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HULL, J.
4 Because we remand for further proceedings, we need not reach defendant’s additional
contention regarding ineffective assistance of counsel.
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